LALITESHWAR PRASAD SHAHI Vs. BATESHWAR PRASAD

JUDGEMENT

(1.) These are two applications under Article 227 of the Constitution arising out of the same election petition and challenging, respectively, the legality and correctness of the order of the Election Tribunal dated 16th July, 1962, refusing amendment of the election petition and the order dated 31st July, 1962, refusing leave to deliver interrogatories for the examination of opposite party No. 1, and they will be disposed of by this judgment; but for the sake of convenience I will deal with them separately. Miscellaneous Judicial Case No. 885 of 1962.

(2.) In a contest between the petitioner and opposite parties 1 to 4 for election to the Bihar Legislative Assembly from the Lalganj North Constituency, Bateshwar Prasad, opposite party No. 1, was declared elected on 27th February, 1962, and on 11th April, 1952, the petitioner filed an election petition under Section 81 of the Representation of the People Act, 1951 (hereinafter referred to as the Act), numbered as 133 of 1962, disputing the election of opposite party No. 1 as void, substantially on the ground that on the date of his election he was disqualified for being chosen as, and for being, a member of the Bihar Legislative Assembly by reason of the disqualification attaching to him under Clause (d) or section 7 of the Act. Clause (d) provides that a person shall be disqualified for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State if there subsists a contract entered into in the course of his trade or business by him with the appropriate Government for the supply of goods to, or for the execution of any works undertaken by, that Government. The Election Commission constituted Mr. Shyamnandan Prasad, District and Sessions Judge, Muzaffarpur, opposite party No. 5, as Election Tribunal and referred to him the election petition for trial under the provisions or Section 86 of the Act. The material facts in support of the said ground are stated in paragraphs 9 to 13 of the election petition (Annexure A), which may be conveniently reproduced here:

(3.) On 5th July, 1962, opposite party No. 1 by a petition sought clarification and particulars regarding the allegations made in paragraphs 12 and 13 aforesaid, and the Election Tribunal, on the same day, directed the petitioner to state by 12th July, 1962, "the facts explicity by petition with regard to the allegations". On 12th July, 1962, the petitioner presented an application for amendment of the said paragraphs 12 and 13 (vide amendment petition, Annexure B). Opposite party No. 1 filed a rejoinder objecting to the granting of the amendment. It will be observed that in paragraphs 12 and 13 the petitioner has dated with precision the nature of the subsisting contracts which opposite party No. 1 had with the State Government, and by the petition of amendment he sought to introduce in those paragraphs the specifications of the said contracts. For a clear understanding of the nature of the amendment sought, I would re-write below paragraphs 12 and 13, showing therein the proposed amendment within brackets: 12. That respondent No. 1 himself and through his firm (Patna Flooring Co., Patna) has got subsisting contracts for mosaic flooring (and dado work in Russian Hostel belonging to Indian Refinery) etc. at (and near) Baradhi with the Government of Bihar and the Central Govt. 13. That the respondent No. 1 directly and indirectly himself and through his firm M/S Patna Flooring company has got several other subsisting contracts (namely (1) supply of engraved marble plates denoting inauguration or different labour welfare centres under the labour department of Govt. of Bihar (2) laying of 2" patent stones and mosaic flooring in Saharsa hospital building under Executive Engineer, P.W.D. Saharsa (3) flooring and mosaic work in Rajgir Kund under P.H.E.D., Patna (4) mosaic and flooring work of T. B. Clinic Latieriasarai under P.W.D. Darbhanga (5) mosaic and flooring work of newly constructed hospital building at or near Agamkuan, Patna under P.W.D., Patna (6) plumbing work under joint Water Board, Patna, (7) mosaic and flooring work of Electricity Board Inspection Bungalow of Barauni under Electricity Board, Patna, (8) mosaic and flooring work of T. B. Sanatorium, Koilwar under P.W.D., Sahabad (9) mosaic and flooring work under N.E. Ry. Gorakhpur with the Central Govt. and with the Government of Bihar for mosaic flooring and for sanitary fittings etc. and so he is disqualified for being chosen and for being a member of the Bihar Legisltaive Assembly. It is manifest that the material facts on which the election was attacked had already been stated in paragraphs 12 and 13, and by the proposed amendment the petitioner only gave a specification of the different contracts opposite party No. 1 had entered into with the Government. The Election Tribunal rejected the petition of amendment on two grounds, first, that the amendment sought to incorporate in those two paragraphs several new instances of contract which were not mentioned in the original petition and, second, that these new instances, if allowed to Be added, would change the nature of the case. Further, relying on the decision of the Supreme Court in Harish Chandra Bajpai v. Triloki Singh, (S) AIR 1957 SC 444, he observed that the Tribunal has no power to amend the petition where new instances are sought to be introduced by the amendment.